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State v. Rastorfer

Court of Appeals of Missouri, Western District, Second Division

February 26, 2019


          Appeal from the Circuit Court of Clay County The Honorable Shane T. Alexander, Judge.

          Before: Alok Ahuja, P.J., and Thomas H. Newton and Mark D. Pfeiffer, JJ.

          Alok Ahuja, Judge.

         After a bench trial in the Circuit Court of Clay County, appellant Peter Rastorfer was convicted of driving while intoxicated in violation of § 577.010 RSMo. He was sentenced as a chronic offender to eight years' incarceration. Rastorfer appeals. He argues that the State's evidence was insufficient to convict him of the offense, because the State failed to prove that he was intoxicated while operating a motor vehicle. We affirm.

         Factual Background[1]

         Two minutes before midnight, on Saturday, October 3, 2015, two Clay County Sheriff's deputies were dispatched to North Eastern Avenue and 134th Street in Smithville for a reported vehicle accident. Upon arrival, Deputy Mary Conrad saw a white Ford F-350 pickup truck off the side of the roadway on an embankment. The truck was lying upside down on its roof. The vehicle was close to and facing the roadway, with its headlights and tail lights on. Deputy Conrad described the weather as clear, and the road as straight and dry with a paved asphalt surface.

         Rastorfer was standing near the truck. As Deputy Conrad approached him, she smelled a "faint" odor of alcohol on his breath, and noticed that his eyes were bloodshot. Deputy Conrad testified that, based on her observations, she believed Rastorfer was intoxicated. Rastorfer declined medical treatment at the scene.

         Rastorfer told Deputy Conrad that he was traveling northbound on North Eastern Avenue when the passenger side wheels of his truck went off the side of the road. He said that he overcorrected and crossed over the center line, went off the opposite side of the road, and then caught an embankment, which caused the truck to flip. The truck rolled several times before it came to rest on its roof next to the road.

         Deputy Chris Johnson responded to the scene of the accident shortly after midnight and began a driving while intoxicated investigation. Deputy Johnson detected a "strong odor" of alcohol coming from Rastorfer. He also observed Rastorfer's eyes to be "watery and glassy," and his balance "swaying and uncertain." Rastorfer told Deputy Johnson that he had last consumed an alcoholic beverage 30 minutes earlier. Deputy Johnson testified that Rastorfer's "hand was bandaged up" due to "an injury on his hand."

         Deputy Johnson performed two field sobriety tests: a horizontal gaze nystagmus (HGN) test, and the walk-and-turn test. He detected three out of six possible clues of intoxication on the HGN test. Deputy Johnson testified that the presence of four clues on the HGN test generally indicates intoxication; but he explained that he was unable to complete the HGN test, and did not score Rastorfer's right eye, because Rastorfer "wouldn't follow my proper instructions" by visually following the stimulus. Deputy Johnson detected four out of eight possible clues of impairment on the walk-and-turn test, and testified that two clues indicates intoxication. When Deputy Johnson attempted to perform the one-leg stand test, Rastorfer refused to comply. Following his investigation, Deputy Johnson arrested Rastorfer for driving while intoxicated and transported him to the Clay County Detention Center.

         At the Detention Center, Deputy Johnson read Rastorfer the Missouri Implied Consent warning, and told Rastorfer that if he refused to submit to chemical testing he would lose his driving privileges for one year. Rastorfer refused to submit to testing.

         In response to questioning, Rastorfer admitted that he had been driving the truck when it crashed. He said he had been injured in the crash but not "substantially." While Deputy Johnson was interrogating him, Rastorfer's hand bled on the counter. Rastorfer said that, "the last three hours prior to his contact with law enforcement," he had been at "dirt track races in Grain Valley." Rastorfer said that he had consumed five beers on the day of the accident, between 2:00 p.m. and 10:00 p.m. Rastorfer admitted that he was under the influence of alcohol at the time of his questioning by Deputy Johnson.

         Rastorfer was charged as a chronic offender with one count of felony driving while intoxicated. He waived his right to a jury trial, and the case was tried to the court. The court found that Rastorfer had been convicted of four or more intoxication-related traffic offenses and was therefore a chronic offender under § 577.023, RSMo. The ...

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